Since 2004, Stephen Oleskey ’64 has been one of the lead attorneys for six men held at Guantanamo Bay in their struggle to challenge their status as “enemy combatants” in U.S. Courts. In 2008, he argued the case Boumediene v. Bush before the Supreme Court, which ruled in that the detainees at Guantamo have a Constitutional right to a legal hearing to establish their guilt or innocence. We talked with him about the treatment of prisoners in U.S. military custody, and his experience visiting Guanatamo Bay, and the status of habeas corpus, issues he will expand upon in his talk next Tuesday in the Smith Reading Room at Olin Library.

Argus: Can you explain the facts and then the legal significance of that Boumediene v. Bush?

Stephen Oleskey: The legal significance of is that the Supreme Court never before held that Congress unconstitutionally stripped the right of habeas corpus for any person eligible for habeas corpus. That happened in this case. It’s the first in history. One consequence is to question to what extent may the Congress deny Habeas corpus to people other than those in Guantanamo, say to those held in Bagram Prison in Afghanistan or in Iraq under American custody. How similar or dissimilar are those circumstances to the imprisonment of the 250 or so men who were being held in Guantanamo in June of 2008?

A: What have the practical results been of the case so far?

SO: I think the results are that all the folks in Guantanamo who have been waiting since 2001 or 2002 or 2003 for some kind of hearing to determine why they were being held and whether they could go on being held are having those hearings before federal judges in Washington, D.C. and a number of them are getting ordered released.

A: Have many people been released after those hearings?

SO: Well, they’ve been ordered released, which is all the federal judges feel they can do. Getting them actually released turns out to involve negotiations between the State Department in other countries, which appear to be complicated in some cases by the fact that the Congress has acted to make it impossible for the President to release anybody here or to bring anybody here to continue their imprisonment.

A: The prisoners that you represented, many of them were actually released, correct?

SO: Four of the six have been released, we hope that a few will shortly be released, and one man was denied release by the judge. So, we’re doing pretty well.

A: What happened to the ones who got released?

SO: Three went back to Bosnia, from which they were illegally taken by the United States in January 2002. And one has been resettled in France.

A: How did the US pick up these guys in Bosnia?

SO: They didn’t—they ordered the Bosnians to do it and they said “We don’t have any evidence that would allow our justice system to arrest them and hold them,” and the United States said, “We have all the evidence that you need. And remember who takes care of Bosnia—it’s us.” So they did it and then the United States didn’t produce any evidence so their court and their prosecutors said, “Well, then they’re going to be released.” So there was an order for release on Jan. 17, 2002, and there was also an order from something called the Human Rights Chamber Court ,set up after the Bosnian War, the men cannot be taken out of Bosnia. Then the United States said to Bosnia again “we’re telling you that we want these men, give them over to us or we’ll withdraw our support for your hapless country” and the Bosnians pragmatically said “yes sir.”

A: And so then they were transferred to Guantanamo Bay?

SO: They were flown over a period of about 48 hours, dressed up like cattle in a US cargo plane, chained to the floor, and denied food or any bathroom breaks. And then they were put into an open prison for about four months called Camp X-Ray, menaced with dogs, threatened, beaten, and tortured.

A: How did they manage to make a legal appeal given the conditions in which they were kept and then how did you get involved with that?

SO: Their wives contacted a human rights legal advocacy group in New York which had brought a case in 2002 challenging detentions which led to Supreme Court decisions in June of 2004 called Rasul [v. Bush] and Hamdi [v. Rumsfeld] and Rasul seemed to say in a footnote that men like my clients could make habeas corpus petitions. So with that background during that period from early 2002 until the middle of 2004, my firm was asked if anyone was interested in taking a case involving six men from Bosnia who were being detained in Guantanamo, and I went ahead and recruited one of my partners. Thirty-six hours later, the firm had approved the representation and we were off. Then we had to get to see our clients, which required going through a lengthy security clearance because the men were considered presumptively terrorists.

A: Guantanamo Bay seems like a deeply mysterious and sort of frightening place, but you actually went there.

SO: I’ve been there about 23 times now.

A: What’s it like there?

SO: You fly into the U.S. military airport, you’re put up in military housing, every morning at about eight o’clock, you get on a ferry and literally cross Guantanamo Bay for about 25 minutes and then a military escort picks you up in a van and takes you to the prison, whichever one of the prisons in which you interview your clients that day. Then you have a break and lunch for them to have prayers and then you’re brought back in the afternoon and you stay until 4:30 or five and then the process repeats where you’re driven out of the prison camp, back to the ferry landing, put on the ferry, and sent back.

A: Did you see the infamous cages where the people are kept?

SO: By and large, no. They were kept in what were considered to be conventional prison cells. The cages virtually don’t exist anymore as far as I know, so we visited clients in essentially holding cells in what your readers would consider to be a place that looks like a US prison, with towers, walls, barbed wire, and so on.

A: What can you make of the living conditions of your clients? Did they seem like they were being treated decently?

SO: In the last several years, they’ve been treated better, but they’re always subject to being arrested by a riot squad called the Immediate Reaction Force, five men with billy clubs, shields, and so on. If you won’t leave your cell or if they think you misbehave, they can beat you and drag you out, and that’s happened to my clients a lot, mercifully not recently. One of my clients was on a hunger strike so he was strapped in a chair twice a day for two and a half years and had a tube stuck down his only good nostril and a liquid protein called Ensure was poured through a funnel for about an hour and a half into his stomach. He said he didn’t want to eat, they said, we won’t let you not eat, so we’re going to force feed you, so they force fed him until he left.

A: What did the government think your clients had done?

SO: They claimed in 2001 that they were planning to blow up the US embassy in Sarajevo, Bosnia. They didn’t show the Bosnians any evidence of this which is one of the reasons the Bosnians would have been released, and then when we finally got our hearing, which was in November 2008, six and a half years later, they dropped the claim that the men had been trying to blow up the US embassy altogether and said that, for five of the six, all that they were claiming was that they had been thinking about going to Afghanistan in the fall of 2001 to resist the US invasion. And the trial judge said, “No, there is no real evidence that that’s the case and if that’s the case, I’m ordering them released.” The sixth man was claimed by the government to be the person who was going to facilitate the other men going to Afghanistan. We think the evidence is very weak, but the judge accepted it, and his appeal is going to be heard on September 23rd at the Circuit Court of Appeals in Washington.

A: Were your clients aware of the election and the change in administration last year?

SO: Yes, in fact my client was so excited that he ate his first solid food in two years, a piece of pizza, and he promptly became sick to his stomach.

A: Do they think that the new administration will actually result in them receiving better treatment?

SO: They have different views depending on where they are in the process. The four men who are out prefer not to think about this because their lives were irrevocably destroyed for almost seven year. The fifth who was very badly treated, including solitary confinement for fifteen months, keeps on asking us, reasonably enough, “what does it mean that I’m free if I’m still here?” And the sixth man is saying “if President Obama wants to make a difference, why does he insist that I still be here?”

A: But there are channels for news of the outside world getting into Guantamo?

SO: It’s freer. It began to free up at the end of the Bush administration, and it’s certainly a lot freer under Obama than they were.

A: So you do think that after the last decade of questions about detention and habeas corpus, do think habeas corpus rights have been restored to what they were back in 2000 and 2001?

SO: I think they’re a long way back to what people hoped they were back in 2000. They were suspended I believe six times in American history before this and never found to be unconstitutional. It was always temporary and there was a remedy in lieu of habeas. In this case, when Congress acted in 2005 they unequivocally stripped habeas from the men in Guantanamo and ultimately, in 2006, from anybody that the U.S. military called an enemy combatant. It was a very different story and it led the Supreme Court to say for the first time in history that this was unconstitutional, that you can’t limit habeas corpus, ladies and gentlemen of the United States Congress, as you purported to, because you provided no adequate alternative remedy. I think, as I said earlier, that one of the issues left unanswered is now that they have stopped sending people to Guantanamo and they’re now holding them instead under American care, custody, control, supervision and jurisdiction in other parts of the world, will the writ extend to those people if they can find American lawyers who can bring a case in a federal court in Washington D.C.

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